People v. Villery CA2/8 ( 2024 )

Filed 10/3/24 P. v. Villery CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B329554
Plaintiff and Respondent, Los Angeles County Super.
Ct. No. TA060012
v.
HENRY LOYD VILLERY,
Defendant and Appellant.
APPEAL from a post judgment order of the Superior Court
of Los Angeles County, Teresa P. Magno, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Henry Loyd Villery walked out of a house with a shotgun,
aimed it at car passenger Reginald Anderson, and pulled the
trigger. Anderson was in a car idling by the curb. The first blast
hit Anderson, and his driver sped away. Villery kept firing as the
car departed.
This was spring 2001. Anderson and his driver were on
their way to a check cashing place. They stopped to pick up one
“Nicole.” Nicole got in the back seat. Anderson explained, “Then
[Villery] came out of the house with the shotgun and just shot
me.”
Neither the prosecution nor the defense plumbed the
motive for Villery’s gun attack. Anderson testified only as to
Villery. No one asked him about his relationship with Villery.
The preliminary hearing did not explore relationships, but
instead focused on bare physical events:
Q: “What was he carrying?”
A: “A shotgun.”
Q: “After you saw him come out with a shotgun, what
happened?”
A: “He just shot me.”
Q: “How far was he from you?”
A: “Say from about 10 feet, 15 feet, close range.”
The blast hit Anderson in the shoulder and penetrated his
upper chest.
The driver reacted by hitting the gas; she “took off.” Villery
fired three more times. The driver, Anderson, and Nicole fled in
the car.
The shots put Anderson in the hospital for 26 days. He had
three surgeries.
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Villery pleaded no contest to violations of Penal Code
sections 664, 187(a), and 459: the 2001 attempted murder of
Anderson, and a 1998 burglary of a place occupied by one James
Thomas, “not an accomplice.” The amended information alleged
that Villery, in committing the burglary, personally inflicted
great bodily injury on Thomas and that Villery used a handgun.
As part of the plea colloquy, Villery also pleaded no contest
to the special allegation that he personally and intentionally
discharged a shotgun. His counsel joined in the plea and
stipulated to a factual basis.
The court sentenced Villery to 31 years and four months.
Two decades later, on December 14, 2021, Villery signed a
four-page handwritten document under penalty of perjury. The
latter part of this document is captioned “Declaration.” Villery’s
declaration made four points.
1. An information alleged Villery committed attempted
murder.
2. Villery pleaded no contest to this charge.
3. Villery could not presently be convicted of attempted
murder because of changes in the law effective 2019
and 2022.
4. Villery asked the court to appoint counsel for him and
to issue a show cause order.
On August 11, 2022, Villery filed a check-the-box petition
for resentencing asserting he was convicted of “murder,
attempted murder, or manslaughter.” He requested appointment
of counsel.
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The prosecution opposed his motion in January 2023. The
reasoning was Villery had been prosecuted as the actual
perpetrator and not as an aider and abettor. “There was no
evidence presented at the preliminary hearing of another
perpetrator being involved in the attempted murder.”
The court held a hearing on March 29, 2023 at which
Villery’s counsel, but not Villery, appeared. An attorney for the
prosecution also appeared. The court said that, on the basis of
the petition and the prosecution’s response, Villery “was
prosecuted as the actual perpetrator who acted with actual
malice.” The court denied Villery’s petition.
We affirm this ruling on the logic of People v. Mares (2024)
99 Cal.App.5th 1158, review granted May 1, 2024, S284232
(Mares). The Legislature enacted resentencing provisions to
address issues of accomplice liability. (Id. at p. 1164.) There was
no accomplice liability here. This shotgunning was the work of
one person — Villery and Villery alone — so far as the record of
conviction shows. Villery’s handwritten declaration did not
contest this point.
“Here, we need not credit the truth of any fact in the
preliminary hearing transcript. What matters is that the record
supports no theory other than those where [Villery] was the
actual [attempted] killer, acting with no accomplice. . . . No facts
support a theory that he was an accomplice to [an attempted]
murder committed by some other person.” (Mares, supra, 99
Cal.App.5th at pp. 1167–1168, review granted S284232 May 1,
2024, S284232.)
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There is sharp disagreement in the intermediate appellate
courts about whether this approach is the right one. (E.g., People
v. Williams (2024) 103 Cal.App.5th 375, 403.) Our Supreme
Court will resolve this disagreement.
DISPOSITION
Affirmed.
WILEY, J.
I concur:
GRIMES, J.
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STRATTON, P.J., Dissenting.
Adopting the analyses of People v. Estrada (2024)
101 Cal.App.5th 328 and People v. Williams (2024)
103 Cal.App.5th 375, I find the trial court erred in considering
the preliminary hearing transcript to deny the petition for
resentencing.
I note Penal Code section 1172.6 does not provide for any
type of evidentiary hearing at the prima facie stage of the
sentencing recall petition process. Section 1172.6, subdivision
(d)(3) reserves the evidentiary hearing for after the prima facie
determination has been made and an order to show cause has
been issued. Only at that point do both parties have the option to
present new and additional evidence on whether the People can
prove, beyond a reasonable doubt, that the petitioner can still be
found guilty of murder, attempted murder or manslaughter
despite the changes made to Penal Code sections 188 and 189.
Those who advocate for admitting the preliminary hearing
transcript into evidence for the prima facie determination
contend that if a petitioner has any evidence rebutting the
transcript, they can just as easily submit it to the trial court
making the prima facie determination. However, without
statutory authority for such a new two-step evidentiary process,
that contention just repeats the error that was the two-step
prima facie construct rejected by our Supreme Court in People v.
Lewis (2021) 11 Cal.5th 952, 962 [We “read subdivision (c) to
describe only a single prima facie showing.”].) I read Penal Code
section 1172.6, subdivision (d) to describe only a single
evidentiary hearing.
And how about the alleged waste of judicial resources and
inefficiency associated with allowing an evidentiary hearing
where the preliminary hearing transcript “clearly” shows a
petitioner ineligible for relief? Judicial waste and inefficiency
were grounds proffered in support of the disfavored two-step
prima facie construct—and soundly thrashed by the Court in
People v. Lewis, supra, 11 Cal.5th at page 968 [“Indeed, the
legislative history of Senate Bill [No.] 1437 demonstrates the
Legislature’s full awareness of its potential impact on judicial
resources.”]. Just as the Lewis Court declined to rewrite the
statute, I see no avenue to change Penal Code section 1172.6’s
procedures without legislative consent.
STRATTON, P. J.
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